It is the way managers deal with employee complaints - rather than the subject of the complaints - that can trigger workers to launch legal claims, according to Hicksons workplace relations practice manager, Brad Swebeck.
Statistics indicate some 24 per cent of workers will launch action for discrimination, harassment and bullying in the next financial year, he told a briefing last week.
Because what constitutes bullying is not always clear, employers should keep in mind the potential "spectrum" of behaviour that can result in a complaint, from subtle (such as excluding someone from a conversation) to extreme (verbal or physical assault), he says.
In some cases, an employee's perceptions of hostility might be sufficient to trigger a claim, so employers must be sure to take all complaints seriously, he says.
Stewart Cameron, also from Hicksons, says the proportion of claims relating to interpersonal conflicts - as opposed to more straightforward injuries such as post-traumatic stress - is on the rise.
"It really is an OHS issue and it is appropriate to manage [the risks] from an OHS perspective." Identifying the cause of a psychological injury, and collecting evidence at the "coal face" is extremely important, he says.
Employers should document requests for time off to deal with "personal issues" because they could be valuable evidence of the true cause of a problem down the track. If the only history a doctor is given relates to bullying at work, they are likely to accept it as the main cause of a psychological problem, Cameron says.
He adds that employers must be "vigilant" when a worker's performance is deteriorating, and they shouldn't avoid talking to an employee about their problems. Do it with empathy, he says, but if necessary commence the company's disciplinary process.
Where all HR processes are clearly documented and can be assembled quickly, and appropriate witnesses are readily identified, there is a greater likelihood of resolving a claim quickly and at lower cost, he says.
Inaction can be negligence
The pitfalls of weak policies and inadequate implementation are illustrated in a 2009 judgment involving the alleged harassment of a KFC employee, Swebeck says.
the assistant manager's behaviour - which included openly "talking dirty" and showing employees pornography - went "seemingly unchecked";
the assistant manager didn't understand that "making comments of a sexual nature could amount to sexual harassment";
workers received "some training" and there was a policy, but because it was not enforced it was ineffective;
given that 60 per cent of the employer's workers were aged between 15 and 18 years, it was not sufficient for an employer "to rely on young employees to make complaints about those who manage them";
there were "insufficient mechanisms" to monitor the assistant manager's conduct "and ensure that management could be proactive about inappropriate conduct; consequently,
although the employer did not expressly authorise the unlawful conduct, its failure to identify and address sexual harassment constituted "authorising that conduct by implication".
The case shows that unless employers take all reasonable steps to prevent the act or conduct, they can be found vicariously liable for it, Swebeck says.
It also shows policies should be drafted with the demographic of the workplace in mind. "Know your workforce," he says, and tailor your policies accordingly.
Managing the risk
In order to ensure HR policies and practices mitigate risks of psychological injury claims, Swebeck makes the following recommendations:
define bullying, discrimination and harassment clearly;
make sure your induction, training and education systems create and maintain awareness;
include after-hours conduct and social networking, email and internet usage in your policies (employers shouldn't think they can't regulate these areas, Swebeck says);
"stress test" the process to ensure it actually works - get managers together and ask them how they would deal with a complaint;
remember managers can be bullied too;
make sure you have varying degrees of discipline so the punishment will fit the crime;
promote a zero-tolerance approach for proven offences;
encourage managers and supervisors to lead by example;
ensure you have robust investigation procedures and whistleblower protection;
strive for transparency, consistency, a timely response and a "fair go" to all concerned; and
make sure policies cover contractors as well as employees.
